STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated this 6th day of May, 2004 by and among
IVP Technology Corporation d.b.a. ActiveCore Technologies, Inc., a Nevada
Corporation ("IVP") and C Comm Network Corporation, a Ontario corporation
("CCNC") and Kent Emerson and Rob Schieren collectively (the "Shareholders").
W I T N E S S E T H:
WHEREAS, IVP wishes to purchase the outstanding shares of CCNC; and
WHEREAS, the Shareholders of CCNC are desirous of proceeding with the
sale of their shares of capital stock of CCNC provided that IVP satisfies
certain conditions and subject to approval by the lawyers for CCNC, for the
issuance of common shares sufficient to meet the purchase price indicated herein
within six business days after the Closing Date (as herein defined).
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and covenants contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
SALE OF STOCK
1.01. Stock To Be Sold. Subject to the terms and conditions of
this Agreement at the Closing referred to in Section 1.03 hereof (the "Closing")
the Shareholders will sell, assign, transfer and deliver the CCNC shares to IVP
free and clear of all liens, charges or encumbrances of whatsoever nature.
1.02. Consideration. (a) Subject to the terms and conditions
of this Agreement, in reliance on the representations, warranties and agreements
of CCNC and the Shareholders contained herein, and in consideration of the sale,
assignment, transfer and delivery of assets referred to in Section 1.01 hereof,
IVP shall issue an aggregate of the number of shares (the "Shares") of its
common stock, par value $.001 per share ("Common Stock"), as indicated in
reference to the calculation indicated in Section 1.021 in the name of the
Shareholders or their designees and deliver the Shares to Kent Emmerson and
Robert Schieren, or their designees, in escrow (the "Escrow") which shall hold
the Shares as escrow agent (the "Escrow Agent") and release the Shares to the
Shareholders or their designees in accordance with the provisions of an escrow
agreement among all of the parties hereto, a copy of which is attached hereto as
Exhibit A (the "Escrow Agreement"). The Shares shall be released from Escrow to
the Shareholders as described in Section 2.1, below.
1.021. Calculation of Share Consideration. The number of
shares to be provided to complete the purchase of CCNC by IVP shall be
determined by taking the average of revenues recorded by CCNC for the two fiscal
years ended September 30, 2002 and September 30 2003, plus the revenues recorded
for the six months ended March 31, 2004, the later multiplied by two to result
in a projected revenue for the fiscal year ended September 30, 2004, then
converting the average revenues into US Dollars at the Bank of Canada rate in
effect as of the effective date of this agreement, then dividing that product by
the weighted average price of IVP shares obtained from the product of the
weighted average closing price of IVP shares on the OTCBB for the two trading
days prior to the effective date, plus the volume and price on the effective
date and the two trading days following the effective date to produce the number
of shares, 30,758,202 to be delivered as consideration.
1.022. Revenue Achievement Bonus: Over the next four quarters
as measured by ActiveCore's quarterly cutoff, the shareholders shall be entitled
to a bonus allotment in IVP shares based on revenue achievement over and above
expected revenue attainment based on current sales levels as follows:
- ---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Quarter Qtr 1 - FY 04 Qtr 2 - FY 04 Qtr 1 - FY 01 Qtr 2 - FY 02
- ---------------------- ---------------------- ------------------------ ----------------------- -----------------------
July 1-Sept 30/04 Oct 1- Dec 31/04 Jan 1 - Mar 31/05 Apr 1 - June 30/05
- ---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Assumed sales USD Base 116,000 Base 116,000 Base 116,000 Base 116,000
- ---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Potential sales e.g. 300,000 e.g. 400,000 e.g. 500,000 e.g. 1,000,000
- ---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Difference 184,000 284,000 384,000 884,000
- ---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Bonus pay 10% 10% 10% 10%
- ---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Monetary value 18,400 28,400 38,400 88,400
- ---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Assumed price Price e.g. .05 Price e.g. .10 Price e.g. .15 Price e.g. .20
- ---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Shares 368,000 shares 284,000 shares 256,000 shares 442,000 shares
- ---------------------- ---------------------- ------------------------ ----------------------- -----------------------
1.03. Closing. The Closing of the transactions contemplated by
this Agreement will take place at the offices of IVP no later than May 6, 2004.
(a) At the Closing, the shareholders will deliver: i)
share certificates evidencing the
shares of CCNC being acquired by IVP hereby, endorsed in favor of IVP; (ii)
copies of duly executed employment agreements between the Shareholders and IVP
in the forms annexed hereto as Exhibits A, B, (collectively, the "Employment
Agreements"); and (iii) all other previously undelivered documents required to
be delivered by CCNC and IVP at or prior to the Closing in connection with the
transactions contemplated by this Agreement.
(b) At the Closing, IVP will deliver to CCNC a board
resolution evidencing the authorization
to issue shares in the names of the Shareholders in the amounts required as
agreed to complete the purchase of the shares of CCNC (i) a duly executed Escrow
Agreement in the form annexed hereto as Exhibit C; (ii) post closing -
certificates evidencing the shares of Common Stock issued as described herein,
registered in the name of the Shareholders or their designees, which
certificates shall be held by the Escrow Agent in accordance with the provisions
of the Escrow Agreement; and (iii) all previously undelivered documents required
to be delivered by IVP to CCNC or the Shareholders at or prior to the Closing in
connection with the transactions contemplated by this Agreement.
1.04. Further Assurances. After the Closing, CCNC and the
Shareholders shall from time to time, at the request of IVP and without further
cost or expense to IVP, execute and deliver such other instruments of conveyance
and transfer and take such other actions as IVP may reasonably request, in order
to more effectively consummate the transactions contemplated hereby and to vest
in IVP good and marketable title to the CCNC Stock being transferred hereunder.
ARTICLE II
TERMS OF ESCROW; OTHER AGREEMENTS AMONG THE PARTIES
2.01. Release of Shares from Escrow.
(a) The Shares being issued into Escrow hereby shall be
released to the Shareholders from Escrow following registration. It is
understood that the shares following registration will be subject to Rule 144 of
the SEC in the same manner as all Directors and Officers of IVP. The
shareholders will consult with the Chairman and CEO with regard to any
disposition of shares such that any disposition shall be done in an orderly
manner and in keeping with the best interests of the all the shareholders of the
company and its management.
2.02. Satisfaction of Certain Financial Obligations of C Comm
Network Corporation. IVP guarantees the payment of all cash compensation payable
under and in accordance with the terms of the Employment Agreements. See
attached Schedules A, B,
2.03. Transfer Restrictions (a) The Shares may only be
disposed of after they have been released to the shareholders from Escrow and
then only pursuant to an effective registration statement under the Securities
Act or pursuant to an available exemption from or in a transaction not subject
to the registration requirements thereof. In connection with any transfer of any
Shares other than pursuant to an effective registration statement, IVP may
require the transferor thereof to provide to IVP an opinion of counsel selected
by the transferor, the form and substance of which opinion shall be reasonably
satisfactory to IVP, to the effect that such transfer does not require
registration under the Securities Act of 1933 (the "Securities Act").
(b) The Shareholders agree to the imprinting, so long as is
required by this Section 2.03, of a legend on the certificates representing the
Shares substantially in the following form:
THESE SHARES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
2.04. Registration Rights with Respect to the Shares.
(a) Inclusion of Shares in Next Registration
Statement. IVP shall include the Shares in the
next registration statement filed by it under the Securities Act ("Registration
Statement"), and, subject to its right to withdraw such filing as described
below, shall use its best efforts to cause the effectiveness of the Registration
Statement within ninety (90) days after the filing thereof. Any such
Registration Statement may include other shares of IVP Stock which IVP is
obligated to register. IVP shall maintain the effectiveness of the Registration
Statement until the expiration of a period which is one year after the
Registration Statement is declared effective by the SEC or such earlier date
when all Shares have been sold or may be sold without volume restrictions
pursuant to Rule 144(k) promulgated under the Securities Act, as determined by
counsel to IVP pursuant to a written opinion letter to such effect, addressed
and acceptable to IVP's transfer agent.
(b) Postponement of Effective Date of Registration
Statement. IVP will be entitled to
postpone or interrupt the effective date of any Registration Statement filed in
connection with such registration (and the use of the prospectus contained
therein) if IVP determines, in its best judgment, after consultation with
counsel, that such registration statement would require the premature
announcement of any material financing, acquisition, corporate reorganization or
other material corporate transaction or development involving IVP which, in
IVP's reasonable determination, would be materially detrimental to the interests
of IVP and its stockholders. Any such postponement or interruption will be for a
minimum period reasonably required to avoid such premature disclosure. IVP
promptly will give the Shareholders notice of such postponement or interruption.
(c) Additional Registration Procedures. In connection
with IVP's obligations to file a
Registration Statement, it shall:
(i) Notify the Shareholders promptly after it
shall receive notice thereof, of the time when such Registration Statement has
become effective with the SEC or a supplement to any prospectus forming a part
of such Registration Statement (a "Prospectus") has been filed.
(ii) Notify the Shareholders of any request by
the SEC for the amending or supplementing of such Registration Statement or
Prospectus or for additional information.
(iii) Prepare and file with the SEC such
amendments and supplements to such Registration Statement and Prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the offer of Shares covered by such Registration Statement during the period
required for distribution of such Shares, as provided in Section 2.04(a), above.
(iv) Furnish to the Shareholders such number
of copies of the Prospectus (including any preliminary prospectus or
supplemental or amended prospectus) as the Shareholders may reasonably request
in order to facilitate the sale and distribution of the Shares.
(v) Prepare and file promptly with the SEC,
and promptly notify the Shareholders of the filing of, such amendment or
supplement to such Registration Statement or Prospectus as may be necessary to
correct any untrue statements of fact or omissions to state any facts necessary
to make the statements therein not misleading in light of the circumstances in
which they were made.
(vi) Advise the Shareholders, promptly after
it receives notice or obtains knowledge thereof, of the issuance of any stop
order by the SEC suspending the effectiveness of such Registration Statement or
the initiation or threatening of any proceeding for that purpose and promptly
use its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued.
(vii) Prepare and file with the SEC, promptly
upon the request of any of the Shareholders, any amendments or supplements to
such Registration Statement or Prospectus which, in the opinion of counsel for
the Shareholders, is required under the Securities Act or the rules and
regulations there under in connection with the distribution of the Shares by the
Shareholders.
(viii) Use its best efforts to register or
qualify the Shares covered by each Registration Statement under such state
securities or blue sky laws of such jurisdictions as the Shareholders and any
underwriters may reasonably request; provided, that IVP shall not be required to
execute any general consent to service of process or to qualify to do business
as a foreign corporation in any jurisdiction where it is not so qualified and
provided further that any such qualification or registration shall not exceed
$5,000 for any one jurisdiction.
(d) IVP may require the Shareholders to furnish to
IVP such information regarding the distribution of the Shares and the beneficial
ownership of the Shares as is required by law to be disclosed in the
Registration Statement and IVP may exclude from such registration Shares of any
holder who unreasonably fails to furnish such information within a reasonable
time after receiving such request.
(e) If the Registration Statement refers to any
holder of Shares by name or otherwise as the holder of any securities of IVP,
then such holder of Shares shall have the right to require (if such reference to
such holder of Shares by name or otherwise is not required by the Securities Act
or any similar Federal statute then in force) the deletion of the reference to
such holder in any amendment or supplement to the Registration Statement filed
or prepared subsequent to the time that such reference ceases to be required.
(f) Each holder of Shares agrees by its acquisition
of such Shares that it will not offer or sell any Shares under the Registration
Statement until it has received copies of the prospectus included in the
Registration Statement as then amended or supplemented and notice from IVP that
such Registration Statement and any post-effective amendments thereto have
become effective and that such holder will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Shares pursuant to the Registration Statement.
(g) Each holder of Shares agrees by its acquisition
of such Shares that, upon receipt of a notice from IVP of the occurrence of any
event of the kind described in this Section 5.01 such holder will forthwith
discontinue disposition of Shares until such holder's receipt of the copies of
the supplemented prospectus and/or amended Registration Statement, or until it
is advised in writing by IVP that the use of the applicable prospectus may be
resumed.
(h) Expenses. All expenses incident to IVP's
performance of or compliance with this undertaking in this Section 2.04,
including without limitation all registration and filing fees (other than
registration and filing fees in excess of $5,000 imposed by state securities or
blue sky laws), printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for IVP and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
persons retained by IVP (all such expenses being herein called "Registration
Expenses"), will be borne by IVP. IVP will, in all events, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit and the expense of any liability insurance. IVP shall not be
responsible for any commission or selling expenses incurred by the Shareholders
of Shares, fees of counsel or accountants retained by Shareholders or of any
other fees not specifically referenced above.
(i) Reporting Requirements Under the Securities
Exchange Act of 1934. IVP shall timely file all such information, documents, and
reports as the SEC may require or prescribe under either Section 13 or 15(d) of
the Exchange Act. IVP shall, whenever requested by the Shareholders, notify the
Shareholders, in writing whether IVP has, as of the date specified by the
Shareholders, complied with the Exchange Act reporting requirements to which it
is subject for a period prior to such date as shall be specified by the
Shareholders. IVP acknowledges and agrees that the purposes of the requirements
contained in this Section 2.04(i) are: (I) to enable the Shareholders to comply
with the current public information requirement contained in Paragraph (c) of
Rule 144 under the Act should the Shareholders ever wish to dispose of any of
the Shares without registration under the Securities Act in reliance upon Rule
144 (or any equivalent successor provision); and (II) to qualify IVP for the use
of registration statements on Form S-3, or its equivalent successor form, in
connection with secondary distributions of securities of IVP. In addition, IVP
shall take such other measures and file such other information, documents, and
reports as shall hereafter be required by the SEC as a condition to the
availability of Rule 144 under the Securities Act (or any equivalent successor
provision), including, without limitation, using its best efforts to assure that
there shall be available at all times adequate public information with respect
to IVP and the IVP Stock. The obligation to make available adequate public
information and otherwise take such measures necessary to maintain the
availability of Rule 144 shall continue in the event that IVP shall cease to
become subject to the filing requirements of Section 13 or Section 15(d) of the
Exchange Act.
(j) Indemnification
(i) Indemnification by IVP. IVP shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Shareholder to the fullest extent permitted by applicable law, from and
against any and all losses, claims, damages, liabilities, settlements,
judgments, costs (including, without limitation, costs of preparation and
reasonable attorneys' fees) and expenses (collectively, "Losses"), incurred,
arising out of or relating to any untrue or alleged untrue statement of a
material fact contained in the Registration Statement, or any prospectus forming
a part thereof (a "Prospectus"), or in any amendment or supplement thereto, or
in any preliminary prospectus, or arising out of or relating to any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein (in the case of any Prospectus or form of
prospectus or supplement thereto, in light of the circumstances under which they
were made) not misleading, except to the extent that such untrue statements or
omissions are based solely upon information regarding such Shareholder furnished
in writing to IVP by or on behalf of such Shareholder expressly for use therein,
or to the extent that such information relates to such Shareholder or such
Shareholder's proposed method of distribution of Shares and was reviewed and
expressly approved in writing by such Shareholder expressly for use in the
Registration Statement, such Prospectus or such form of prospectus or in any
amendment or supplement thereto, provided, however, that under no circumstances
shall any Shareholder who is an officer or director of IVP and participated in
the preparation and filing of any such Registration Statement and Prospectus be
relieved from primary liability under the Securities Act or Securities Exchange
Act for material misstatements or omissions in said Registration Statement or
Prospectus. IVP shall notify the Shareholders promptly of the institution,
threat or assertion of any action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened (herein referred to as a
"Proceeding") of which IVP is aware in connection with the transactions
contemplated by this Agreement.
(ii) Indemnification by the Shareholders. Each
Shareholder shall, severally and not jointly, indemnify and hold harmless IVP,
its directors, officers, agents and employees, each Person who controls IVP
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Securities Exchange Act), to the fullest extent permitted by applicable law,
from and against all Losses (as determined by a court of competent jurisdiction
in a final judgment not subject to appeal or review) arising solely out of or
based solely upon any untrue statement of a material fact contained in the
Registration Statement, any Prospectus, or any form of prospectus, or arising
solely out of or based solely upon any omission of a material fact required to
be stated therein or necessary to make the statements therein not misleading to
the extent, that such untrue statement or omission is contained in any
information so furnished in writing by such Shareholder to IVP specifically for
inclusion in the Registration Statement or such Prospectus or to the extent that
such information relates to such Shareholder or such Shareholder's proposed
method of distribution of Shares and was reviewed and expressly approved in
writing by such Shareholder expressly for use in the Registration Statement,
such Prospectus or such form of Prospectus and as otherwise provided in Section
2.04(j)(i), above.
(iii) Conduct of Indemnification Proceedings.
If any Proceeding shall be brought or asserted against any person entitled to
indemnity hereunder (an "Indemnified Party"), such Indemnified Party promptly
shall notify the person from whom indemnity is sought (the "Indemnifying Party")
in writing, and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all fees and expenses incurred in connection with
defense thereof; provided, that the failure of any Indemnified Party to give
such notice shall not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except (and only) to the extent that it
shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure
shall have proximately and materially adversely prejudiced the Indemnifying
Party.
An Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; or (2) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3)
the named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and such
Indemnified Party shall have been advised by counsel that a conflict of interest
is likely to exist if the same counsel were to represent such Indemnified Party
and the Indemnifying Party (in which case, if such Indemnified Party notifies
the Indemnifying Party in writing that it elects to employ separate counsel at
the expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability on claims that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten (10) business days of written notice thereof to the
Indemnifying Party (regardless of whether it is ultimately determined that an
Indemnified Party is not entitled to indemnification hereunder; provided, that
the Indemnifying Party may require such Indemnified Party to undertake to
reimburse all such fees and expenses to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification
hereunder).
(iv) Contribution. If a claim for
indemnification under Section 2.04(j)(i) or 2.04(j)(ii) is unavailable to an
Indemnified Party because of a failure or refusal of a governmental authority to
enforce such indemnification in accordance with its terms (by reason of public
policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 2.04(j)(ii), any reasonable attorneys'
or other reasonable fees or expenses incurred by such party in connection with
any Proceeding to the extent such party would have been indemnified for such
fees or expenses if the indemnification provided for in this Section was
available to such party in accordance with its terms.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.04(j)(iv) were determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this Section 2.04(j)(iv),
the Shareholders shall not be required to contribute, in the aggregate, any
amount in excess of the amount of proceeds actually received by the Shareholders
from the sale of the Shares. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties.
(v) The obligations of IVP and the
Shareholders under this Section 2.04(j) shall survive the completion of any
offering of Shares in a registration statement under this Section 2.04, and
otherwise.
2.05. Assignment of Registration Rights. The rights of a
Shareholder to have the Shares registered hereunder shall be automatically
assignable by such Shareholder to any assignee or transferee of all or a portion
of the Shares without the consent of IVP but only (a) after such time as Shares
have been released from Escrow and vested with a Shareholder; (b) if such
Shareholder agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to IVP within a reasonable
time after such assignment, (c) if IVP is, within a reasonable time after such
transfer or assignment, furnished with written notice of (i) the name and
address of such transferee or assignee, and (ii) the securities with respect to
such registration rights are being transferred or assigned, and (d) if, at or
before the time IVP receives the written notice contemplated by clause (c) of
this Section, the transferee or assignee agrees in writing with IVP to be bound
by all of the provisions of this Agreement. The rights to assignment shall apply
to the Shareholders' (and to subsequent) successors and assigns.
2.06. Confidentiality. Each party hereto will hold and will
cause its consultants and advisors to hold in strict confidence, unless
compelled to disclose by judicial or administrative process or, in the opinion
of its counsel, by other requirements of law, all documents and information
concerning the other party furnished it by such other party or its
representatives in connection with the transactions contemplated by this
Agreement (except to the extent that such information can be shown to have been
(i) previously known by the party to which it was furnished, (ii) in the public
domain through no fault of such party, or (iii) later lawfully acquired from
other sources by the party to which it was furnished), and each party will not
release or disclose such information to any other person, except its auditors,
attorneys, financial advisors, bankers and other consultants and advisors in
connection with this Agreement. If the transactions contemplated by this
Agreement are not consummated, such confidence shall be maintained except to the
extent such information comes into the public domain through no fault of the
party required to hold it in confidence, and such information shall not be used
to the detriment of, or in relation to any investment in, the other party and
all such documents (including copies thereof) shall be returned to the other
party immediately upon the written request of such other party. Each party shall
be deemed to have satisfied its obligation to hold confidential information
concerning or supplied by the other party if it exercises the same care as it
takes to preserve confidentiality for its own similar information.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF IVP
IVP hereby represents, covenants and warrants to CCNC and the
Shareholders as follows:
3.01. Corporate Organization; Etc. IVP is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and has full corporate power and authority to carry on its business as it
is now being conducted and to own the properties and assets it now owns. The
copies of the Certificate of Incorporation and By-Laws of IVP attached hereto as
Exhibits D and E, respectively, are complete and correct copies of such
instruments as presently in effect.
3.02. Capitalization of IVP. As of the date of this Agreement,
the authorized capital stock of IVP consists of 500,000,000 shares of Common
Stock, $.001 par value per share, of which ____________340,767,348 shares are
issued and outstanding. All issued and outstanding shares of capital stock of
IVP are validly issued, fully paid and nonassessable. Except as described in
Section 3.02 of the Disclosure Schedule, there are no outstanding (a) securities
convertible into or exchangeable for IVP capital stock; (b) options, warrants or
other rights to purchase or subscribe to capital stock of IVP or securities
convertible into or exchangeable for capital stock of IVP; or (c) contracts,
commitments, agreements, understandings or arrangements of any kind relating to
the issuance of any capital stock of IVP, any such convertible or exchangeable
securities or any such options, warrants or rights.
3.03. Subsidiaries and Affiliates. Except as described in
Section ____ of the Disclosure Schedule, IVP does not own, directly or
indirectly, any capital stock or other equity securities of any corporation or
have any direct or indirect equity or ownership interest in any business.
3.04. Authorization, Etc. IVP has full corporate power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby. The Board of Directors of IVP has taken all action required
by law, IVP's Articles of Incorporation, its By-Laws or otherwise to be taken by
them to authorize the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, and, this Agreement is a
valid and binding agreement of IVP enforceable in accordance with its terms,
except that (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights, (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefore may be brought, and (iii) enforceability of Section 2.04(j) of this
Agreement may be subject to limitations of public policy under Federal and State
securities laws.
3.05. No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
violate any provision of the Articles of Incorporation or By-Laws of IVP, or,
violate, or be in conflict with, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance required by, or
cause the acceleration of the maturity of any debt or obligation pursuant to, or
result in the creation or imposition of any security interest, lien or other
encumbrance upon any property or assets of IVP under, any agreement or
commitment to which IVP is a party or by which IVP is bound, or to which the
property of IVP is subject, or violate any statute or law or any judgment,
decree, order, regulation or rule of any court or governmental authority.
3.06. SEC Reports. The Annual Report of IVP on Form 10-KSB for
the year ended December 31, 2003 filed under the Securities Exchange Act, and
all other reports and Proxy Statements required to be filed by IVP under the
Securities Exchange Act since April 24, 2000 (the date upon which IVP became
subject to the reporting requirements of the Securities Exchange Act), have been
duly by IVP and were in compliance with the requirements of their respective
reports forms.
3.07. Financial Statements. IVP has heretofore delivered to
CCNC: (i) a consolidated balance sheet of IVP as at December 31, 2003; and
consolidated statements of income, changes in stockholders' equity and changes
in financial position for each of the years then ended, all certified by
Weinberg & Company, P.A., independent certified public accountants, whose
reports thereon are included therein. Such consolidated balance sheets and the
notes thereto are true, complete and accurate and fairly present the
consolidated assets, liabilities and financial condition of IVP and the IVP
Subsidiary at the respective dates thereof, and such consolidated statements of
income, changes in stockholders' equity and changes in financial position and
the notes thereto are true, complete and accurate and fairly present the results
of operations for the periods therein referred to; all in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved except, in the case of unaudited statements, for normally
recurring year-end adjustments, which adjustments will not be material either
individually or in the aggregate.
3.08. Interim Operations. Since the date of the Balance Sheet,
the business of IVP has been conducted only in the ordinary and usual course
consistent with past practice. Since the date of the Balance Sheet, there have
not been any material adverse changes in the financial condition, assets or
results of operations of IVP or the IVP Subsidiary. Since such date, such assets
have not been affected in any way as a result of flood, fire, explosion or other
casualty (whether or not covered by insurance). IVP is not aware of any
circumstances which may cause it to suffer any material adverse change in its
business, operations or prospects.
3.09. Patents, Trademarks, Trade Names, Etc. As more fully
described in Section ______ of the Disclosure Schedule, IVP is licensed to use
all technology, know-how and processes used in or necessary for the conduct of
the business as heretofore conducted.
3.10. Leases. IVP is not party to any lease for real or
personal property except as described in Section ______.
3.11. Orders and Returns. As of the date of this Agreement,
IVP does not have any commitments or unfulfilled orders for the sale of
merchandise. As of the date of this Agreement, there are no claims against IVP
to return any merchandise.
3.12. Agreements in Full Force and Effect. All contracts,
agreements, policies and licenses referred to in the Disclosure Schedule are
valid and in full force and effect, and true copies thereof have been heretofore
made available to CCNC and the shareholders.
3.13. Litigation. There is no action, suit, inquiry,
proceeding or investigation by or before any court or governmental or other
regulatory or administrative agency or commission pending threatened against or
involving IVP or the IVP Subsidiary, or which questions or challenges the
validity of this Agreement or any action taken or to be taken by IVP pursuant to
this Agreement or in connection with the transactions contemplated hereby.
Neither IVP is subject to any judgment, order or decree entered in any lawsuit
or proceeding which may have an adverse effect on its business practices or on
its ability to acquire any property or conduct its business in any area.
3.14. Disclosure. No representations or warranties by IVP in
this Agreement and no statement contained in any document (including, without
limitation, financial statements and the Disclosure Schedule), certificate, or
other writing furnished or to be furnished by IVP to CCNC or the shareholders or
any of its representatives pursuant to the provisions hereof or in connection
with the transactions contemplated hereby, contains or will contain any untrue
statement of material fact or omits or will omit to state any material fact
necessary, in light of the circumstances under which it was made, in order to
make the statements herein or therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CCNC AND THE SHAREHOLDERS
CCNC and the Shareholders, jointly and severally, represent
and warrant to IVP as follows:
4.01. Corporate Organization; Etc. CCNC is a corporation duly
organized, validly existing and in good standing under the laws of the Province
of Ontario respectively. All the issued and outstanding shares of capital stock
of CCNC (i) has been duly authorized by all necessary corporation action, (ii)
are validly issued, fully paid and nonassessable and are owned by the
Shareholders.
4.02. Authorization; Etc. CCNC and the Shareholders have full
corporate power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby. The Board of Directors of CCNC have taken all
action required by law, their Articles of Incorporation and By-Laws or otherwise
to authorize the execution and delivery of this Agreement and the transactions
contemplated hereby, and this Agreement is a valid and binding agreement of CCNC
enforceable in accordance with its terms except that (i) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights, (ii) the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought, and (iii) enforceability of Section
2.04(j) of this Agreement may be subject to limitations of public policy under
Federal, Provincial and State securities laws.
4.03. No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
violate any provisions of the Articles of Incorporation or By-Laws of CCNC , or
violate, or be in conflict with, or constitute a default under, or cause the
acceleration of the maturity of any debt or obligation pursuant to, any
agreement or commitment to which CCNC is a party or by which CCNC is bound, or
violate any statute or law or any judgment, decree, order, regulation or rule of
any court or governmental authority.
4.04. Prior Activities. CCNC do not have assets exceeding an
aggregate value of $1,000,000 and have not incurred, directly or through any
subsidiary, any liabilities or obligations in excess of $1,000,000 except those
incurred in connection with its incorporation or with the negotiation and
consummation of this Agreement and the transactions contemplated thereby. CCNC
has not engaged in any illegal business or activities of any type or kind
whatsoever, or entered into any agreements or arrangements with any person or
entity, or is subject to or bound by any obligation or undertaking which is not
described in or contemplated by this Agreement.
4.05. Ownership of CCNC Shares. Each of the Shareholders
represents and warrants to IVP that he is the sole lawful, beneficial, and
record owner of the shares of CCNC and Stock listed on Schedule E hereto, free
of any liens, charges, security interests or encumbrances, and has good and
marketable title to such shares.
4.06. Investment Intent as to the Shares. Each of the
Shareholders is acquiring the Shares for his own account, for investment and not
with a view to, or for sale in connection with, any distribution of such shares
or any part thereof, without prejudice, however, to such Shareholder's right,
subject to the provisions of this Agreement, at all times to sell or otherwise
dispose of all or any part of the Shares pursuant to an effective registration
statement under the Securities Act and in compliance with applicable state
securities laws or under an exemption from such registration.
4.07. No Registration of Shares. Each of the Shareholders
acknowledges that the Shares have not been registered under the Securities Act,
and that, except as provided in Article II hereof, IVP is under no obligation to
register under the Securities Act the shares of IVP Stock being issued to CCNC
or the Shareholders hereunder.
4.08. Power and Authority. Each of the Shareholders has full
right, power, and authority to execute and deliver, and to perform his
obligations under, this Agreement and that this Agreement has been duly executed
and delivered by him and constitutes his valid and binding obligation.
4.09. Further Assurances. Each Shareholder shall take any
further action or execute such further instruments as may be necessary to
effectuate the terms of this Agreement.
ARTICLE V
COVENANTS OF IVP
IVP hereby covenants and agrees with CCNC:
5.01. Full Access. IVP shall afford to CCNC, its counsel,
accountants and other representatives full access to the plants, offices,
warehouses, properties, books and records of IVP in order that CCNC may have
full opportunity to make such investigations as it shall desire to make of the
affairs of IVP.
5.02. Covenant to Satisfy Conditions. IVP will use its best
efforts to insure that the conditions set forth in Article VI hereof are
satisfied, insofar as such matters are within the control of any of them.
5.03. Certificates. At the Closing, IVP will furnish CCNC with
such certificates of its officers and others to evidence compliance with the
covenants set forth in this Article V as may be reasonably requested by CCNC.
ARTICLE VI
CONDITIONS TO CCNC'S AND THE SHAREHOLDERS' OBLIGATIONS
Each and every obligation of CCNC under this Agreement to be
performed on or before the Closing shall be subject to the satisfaction, on or
before the Closing, of each of the following conditions, unless waived in
writing by CCNC:
6.01. Representations and Warranties True. The representations
and warranties of IVP contained herein shall be in all material respects true
and accurate as of the date when made and at and as of the Closing as though
such representations and warranties were made at and as of such date, except for
changes expressly permitted or contemplated by the terms of this Agreement.
6.02. Performance. IVP shall have performed and complied with
all agreements, obligations and conditions required by this Agreement to be
performed or complied with by them on or prior to the Closing.
6.03. No Governmental Proceeding or Litigation. No suit,
action, investigation, inquiry or other proceeding by any governmental body or
other person or legal or administrative proceeding shall have been instituted or
threatened which questions the validity or legality of the transactions
contemplated hereby.
6.04. Certificates. IVP shall have furnished CCNC with such
certificates of their officers and others to evidence compliance with the
conditions set forth in this Article VI as may be reasonably requested by CCNC.
ARTICLE VII
CONDUCT OF IVP'S BUSINESS PENDING THE CLOSING
Pending the Closing, and except as otherwise expressly
consented to or approved by CCNC in writing:
7.01. Regular Course of Business. IVP will carry on its
business diligently and substantially in the same manner as heretofore
conducted, and IVP shall not institute any new methods of manufacture, purchase,
sale, lease, management, accounting or operation or engage in any transaction or
activity, enter into any agreement or make any commitment, except in the
ordinary course of business and consistent with past practice.
7.02. Amendments. Except as otherwise described in and
required by Section 6.04 hereof, IVP shall not change or amend its Articles of
Incorporation or By-Laws.
7.03. Capital Changes; Dividends, Redemptions. IVP will not
issue or sell any shares of its capital stock or other securities except in
connection with a financing transaction which results in IVP receiving working
capital, acquire directly or indirectly, by redemption or otherwise, any such
capital stock, reclassify or split-up any such capital stock, declare or pay any
dividends thereon in cash, securities or other property or make any other
distribution with respect thereto, or grant or enter into any options, warrants,
calls or commitments of any kind with respect thereto.
7.04. Compliance with Laws. IVP shall duly comply with all
laws applicable to it and its properties, operations, business and employees.
7.05. SEC Reports. IVP will duly file all reports required to
be filed by it with the SEC pursuant to the Securities Exchange Act.
ARTICLE VIII
TERMINATION AND ABANDONMENT
8.01. Methods of Termination. The transactions contemplated
herein may be terminated and/or abandoned at any time but not later than the
Closing:
(a) By mutual consent of the respective Boards of Directors of IVP
and CCNC; or
(b) By the Boards of Directors of CCNC on or after May 10, 2004 ,
or such later date as may be established pursuant to Section
1.03 hereof, if any of the conditions provided for in Article
VI of this Agreement shall not have been met or waived in
writing by CCNC prior to such date.
8.02. Procedure Upon Termination. In the event of termination
and abandonment of this Agreement pursuant to Section 8.01 hereof, written
notice thereof shall forthwith be given to the other party and the transactions
contemplated by this Agreement shall be terminated and/or abandoned, without
further action by IVP or CCNC. If the transactions contemplated by this
Agreement are terminated and/or abandoned as provided herein:
(a) Each party will redeliver all documents, work
papers and other material of any other party relating to the transactions
contemplated hereby, whether so obtained before or after the execution hereof,
to the party furnishing the same;
(b) All confidential information received by any
party hereto with respect to the business of any other party or its subsidiaries
shall be treated in accordance with Section 2.06 hereof; and
(c) No party hereto shall have any liability or
further obligation to any other party to this Agreement except as stated in
subparagraphs (a) and (b) of this Section 8.02.
ARTICLE XII
MISCELLANEOUS PROVISIONS
9.01. Amendment and Modification. Subject to applicable law,
this Agreement may be amended, modified and supplemented by written agreement of
the respective Boards of Directors of IVP and CCNC or by their respective
officers authorized by such Boards of Directors at any time prior to the Closing
with respect to any of the terms contained herein.
9.02. Waiver of Compliance. Any failure of IVP, on the one
hand, or CCNC , on the other, to comply with any obligation, covenant, agreement
or condition herein may be expressly waived in writing by the Chairman of the
Board. President or a Vice President of IVP or CCNC , respectively, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
9.03. Expenses; Transfer Taxes, Etc Whether or not the
transaction contemplated by this Agreement shall be consummated, IVP agrees that
all fees and expenses incurred by it in connection with this Agreement shall be
borne by it and CCNC agrees that all fees and expenses incurred by it in
connection with this Agreement shall be borne by it, including, without
limitation as to IVP or CCNC, all fees of counsel and accountants. IVP agrees
that it will pay all sales, transfer or other taxes which may be payable in
connection with the transactions contemplated by this Agreement.
9.04. Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered by hand or mailed, certified or
registered mail with postage prepaid:
(a) If to IVP, to:
IVP Technology Corporation
d.b.a. ActiveCore Technologies, Inc.
156 Front Street West, Suite 210
Toronto, Ontario, Canada, M5J 2L6
or to such other person or address as IVP shall furnish to CCNC in writing.
(b) If to CCNC or the Shareholders, to:
385 The West Mall, Suite 214
Etobicoke, Ontario, CANADA
M9C 1E7
Attention: Kent Emmerson or Rob Schieren
or to such other person or address as CCNC shall furnish to IVP in writing.
9.05. Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties.
9.06. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the Province of
Ontario without regard to the principles of conflicts of law thereof. Each party
hereby irrevocably submits to the non-exclusive jurisdiction of the Province of
Ontario sitting in the City of Toronto, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law.
9.07. Execution. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
9.08. Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties and no presumption shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state or local
statute or law shall be deemed to also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. The word
"including" shall mean including without limitation. The parties intend that
each representation, warranty or covenant contained herein shall have
independent significance. If any party has breached any representation, warranty
or covenant herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the party has not
breached shall not detract from or mitigate the fact that the party is in breach
of the first representation, warranty or covenant.
9.09. Severability. In case any one or more of the provisions
of this Agreement shall be invalid or unenforceable in any respect, the validity
and enforceability of the remaining terms and provisions of this Agreement shall
not in any way be affected or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
9.10. Headings. The headings of the Sections and Articles of
this Agreement are inserted for convenience only and shall not constitute a part
hereof or affect in any way the meaning or interpretation of this Agreement.
9.11. Third Parties. Except as specifically set forth or
referred to herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any person or corporation other than the
parties hereto and their successors or assigns, any rights or remedies under or
by reason of this Agreement.
9.12. Entire Agreement. This Agreement, including the Exhibits
hereto, the Disclosure Schedule and the other documents and certificates
delivered pursuant to the terms hereof, set forth the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein, and supersede all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be affixed hereto, all as
of the day and year first above written.
IVP TECHNOLOGY CORPORATION d.ba.
ActiveCore Technologies, Inc.
[Seal] By: /s/ Brian MacDonald
Title:__________
Attest:
- -------------------------
Title:
C COMM NETWORK CORPORATION
_________________________ By: _/s/ Kent Emmerson__________
Title:
_________________________ By: /s/ Rob Schieren_____________
Title:
SHAREHOLDERS
_/s/_____________________ __/s/______________________
Rob Schieren Kent Emmerson